45 Iowa 377 | Iowa | 1877
Under .such circumstances, the counsel for the defendant insists that Welling, at the time of the conversation in the street, was not acting as the agent of the defendant, and that, therefore, the latter is not bound by what he then agreed or by what then occurred between him and Warner.
It is clear and undisputed that Welling was not acting for himself, but as the agent for some one. This both parties well understood. By issuing the policy the defendant received the benefits of the negotiations, and by every principle of fairness and common honesty is estopped from repudiating the burdens and obligations assumed during the negotiations. If an agent purchases goods for an úndisclosed principal, the latter, when discovered, can be made liable on the -contract. Stoiy on Agency, Sec. 267.
The mere fact that th'e principal was not disclosed íy no means destro}^ the agency, when it was understood that Welling was not acting as a principal, and by accepting the benefits, or supposed advantages, the defendant ratifies the agency, and what was done by the agent during the negotiations, and is bound thereby.
“ 3. Now, if the jury find from the evidence that the premium was not paid at the time or prior to the issuance of the policy, on the 1st day of April, yet, if you find that the defendant’s agent told Warner that he could pay the premium*380 at any time within the month of April,-and that the policy would take effect from its date, and that Warner relied upon the same, and that both parties treated the same as a valid insurance, then such acts and agreements on the part of the agent would constitute a waiver of the prepayment of the premium, and the fact that the agent failed to indorse such waiver upon the policy will not prevent a recovery in this action.”
Cook & Welling were authorized to issue policies without consultation with any officer or agent of the company. They agreed on the risks and premiums, and were furnished with blank policies properly signed, and when written up and countersigned by them such policies became binding on the company. If, therefore, any officer or agent could waive the conditions in the policy in question, there can be no doubt these agents were vested with such powers.
That the prepayment of the premium may be waived by a general agent, even where the policy recites it shall not be binding until the cash portion of the premium is actually paid in money, we regard ás settled by the authorities. Mississippi Valley Ins. Co. v. Neyland, 9 Bush, 430; Sheldon v. Conn. Mutual Ins. Co., 25 Conn., 207.
It has been held in this State, where the policy provided it should be void in case there was an increase of the risk, unless consent thereto was indorsed in writing on the policy, that such writing was not essential, but that an agent might, by parol, waive the conditions of the policy. Viele v. Germania Ins. Co., 26 Iowa, 9.
The policy clearly implies there may be a waiver of any and all conditions by an agent, but declares that the only evidence of such waiver shall be in writing, indorsed on the policy.
The condition in relation to the payment of the premium seems to forbid a waiver as strongly as the condition that whatever is done in this respect shall be expressed in wu-iting on the policy. Both are undoubtedly inserted at the instance of the defendant; and why may not the writing be waived just as well as the prepayment of the premium? The one is no more sacred or obligatory than the other, and both, it may be said, are equally binding. The failure to pay the premium
The policy does not contain any limitation on the power of the agent to waive the conditions, but only prescribes the way or manner the waiver shall be evidenced. It may be said to be a notice to persons doing business with the company, and if brought to the attention of the assured before the policy is delivered, it might be regarded as obligatory on him. But such a notice in a delivered policy cannot have such an effect. Per Comstock, J., in Trustees Baptist Church v. Brooklyn Insurance Co., supra.
In the present case an agent with large discretionary powers writes up and delivers the policy which contains the condition just referred to, and at the same time agrees to extend a short credit for the payment of the premium; under such a state of facts the assured had the right to suppose all conditions precedent to the taking effect of the policy had been waived. If such a policy be held void it would be sanctioning something nearly akin to a fraud; especially is this true in this case, where the assured had no actual notice of the conditions in the policy. That he was bound in a legal sense to know may be conceded.
"When the' policy was delivered the contract was complete, and if the agent by his agreement or conduct misled the assured, and thereby induced him to accept the policy under the belief there had been a waiver of all conditions precédent, and delivered the policy, the defendant is estopped thereby. Westchester Fire Insurance Compamy v. Earle, 33 Mich., 143.
If it be said the assured may in all eases protect himself by seeing that the requisite indorsement is made on the policy,
Tbe action in Wright v. Hartford Fire Insurance Company, 36 Wis., 522, was on a policy precisely like tbe one in tbe present case, and it was there held tbat tbe condition we have been discussing might be waived by tbe acts, conduct and knowledge of tbe agent, though no written consent was indorsed on tbe policy. Tbe views 'herein expressed are fully in accord with Viele v. Germania Insurance Company, supra. Indeed, if tbat case is' followed to its logical results it is decisive of tbe main question in this case; for it must be obvious there can be no distinction, so far as tbe company is concerned, between the waiver of conditions precedent to tbe taking effect of tbe policy, and those subsequent thereto, except as to tbe former tbe company can at all times protect itself by declining to deliver tbe policy, while in tbe latter such protection cannot be so readily obtained, or tbe power of agents -to waive such conditions so effectually guarded.
III. There was evidence tending to show a delivery of the policy. In fact, if the evidence of Warner, in connection with tbat of Welling, as to tbe entries in tbe books of tbe company, was believed by tbe jury, there is no question as to there being a completed contract of insurance, and also a delivery of tbe policy.
It is not specially urged tbat tbe verdict in this respect is against tbe evidence. Under tbe well established rules in this respect such an objection could not be successfully urged.
Nor are tbe instructions of tbe court as to under what circumstances tbe contract should be deemed complete, or whether
IY. Having determined it was competent to show a parol waiver of the conditions of the policy, it necessarily follows that the evidence introduced against the objection of the defendant which tended to so prove was properly admitted, and that the objection urged in this court in reference thereto is not well taken.
Objections of this kind are technical and without substantial merit, and the insurer should make such known with reasonable promptitude to the end that they may be perfected if possible.
Affirmed